Opponents make case for validity of repeal question

Saturday

Mar 22, 2014 at 4:27 PM

By Matt Murphy State House News Service

Backers of a ballot petition to make casino gambling illegal in Massachusetts detailed their arguments in a legal brief Friday as they seek to overturn Attorney Martha Coakley’s ruling that the question is not eligible for the ballot.The petitioners will argue to Supreme Judicial Court that prospective casino developers entered the licensing process knowing that the law legalizing expanded gambling in Massachusetts could be changed at any time and that Coakley should have erred on the side of the voters when deciding whether to allow the ballot question to proceed."The attorney general, who we greatly respect, was simply wrong to deny this petition on the ballot and to deny the right to vote," said former Attorney General Scott Harshbarger, a casino opponent who is advising the ballot group.Coakley in September declined to certify the ballot proposal to prohibit casinos, but the group behind the proposal – Repeal the Casino Deal - got an injunction from the Supreme Judicial Court and papers from Secretary of State William Galvin's office to begin collecting signatures for the 2014 ballot.The petitioners expect the court to hear their argument the first full week in May. The attorney general's decision was based on her determination that contract rights are considered property and may not be "taken" by an initiative petition. Her office contends that applicants for casino licenses have an "implied contractual right" and an expectation that the licensing process will play out as set forth in the expanded gaming law.Attorneys for the petitioners said it would be "absurd" for casino developers, who operate in a heavily regulated industry, to assume the law approved by the Legislature could not be changed, evidenced by applicants advocating changes themselves to the tax structure. Attorney Tom Bean said no "implied contract" between the Gaming Commission and casino applicants existed, nor was one authorized by the Legislature in the gaming law.Though Coakley never suggested that the Legislature didn’t have the right to change the gambling law mid-stream, Bean, a Boston attorney with Verrill Dana, LLP, said the powers of the Legislature extend to the general public and that Coakley never proved that it was "reasonably clear" the ballot question fell into a category excluded from the initiative petition process."The power of the people to enact laws, the SJC has said, is coextensive with that of the Legislature. The Legislature derives its power from the people," Bean said.In the brief, the attorneys write: "As the power of the people to enact laws through the initiative process is co-extensive with that of the Legislature, and the regulation of gambling is at the core of the State’s police and regulatory powers, any implied contract that purported to prevent the people from exercising such powers is, as this Court put it in an Opinion of the Justices, ‘invalid.’"The brief also contends that casino developers have no right to claim a private property interest in the Gaming Commission ruling on their application for a license because that interest "lacks the traditional hallmarks of private property, such as transferability and excludability."The attorneys pointed to a similar situation when Taunton racetrack owner George Carney challenged a ballot question abolishing greyhound racing in Massachusetts, which the SJC allowed to proceed to the ballot. Voters ultimately outlawed greyhound racing in Massachusetts, jeopardizing the future of the tracks that hosted races, and in the case of Wonderland in Revere forcing the track’s closure.A WBUR poll released this week showed eroding support for casino gambling in Massachusetts, 46 percent in support of casinos and 43 percent opposed."We didn’t agree with the attorney general’s decision to decertify the question when she did it back in September, and now we know we have the legal arguments to prove it and we really believe we will be successful in this case and will be on the ballot in November," said John Ribeiro, chairman of Repeal the Casino Deal. "What’s even more encouraging which underpins everything we’ve been working for, is the more people learn about casinos the less they like them."